November 2012

November 29, 2012

They say that attraction is better than promotion, and we’re pleased this blog has been attractive. We’re honored to be in the fine company of the ABA Journal Blawg 100 for a second year. If you like what you read here, feel free to give us another bump by registering and voting at the link above in the “Trial Practice” category. But – as you might expect – there is more to it than self-congratulations. Just as I noted on the occasion of our first Blawg 100 honors last year, there is a larger point to be made, and it bears on the work of litigators. In this case, the larger point boils down to one simple word: Share. Share your knowledge, share your experience, and share your skills. Generously. Yes, we are in the business of selling all three, but the reality is that we’re also entering what can be called a “new knowledge economy” where value is something that often moves freely in an open creative commons, and is not simply bartered away to paying customers.

In other words, the lesson for litigators I’ve learned in writing this blog is a lesson for how lawyers should promote, or more accurately, attract. That lesson is to be generous with your time and your expertise. Of course, lawyers need to be careful and clear about when representation is and isn't created. But as lawyers and legal consultants, we're in the business of getting potential clients to trust us before they hire us. Reputation, past work, or a longstanding relationship - those are all great routes to trust. But for those who we are just meeting, how do we get them to trust? A new essay in Boro Zivkovic' blog post for Scientific American, “Nate Silver and the Ascendance of Expertise” provides some timely wisdom on this point. "Expertise engenders trust," according to this science blogging pioneer, and as we're becoming fed up with glib pundits and bloviators, "there is a hunger out there for expertise." Expertise is something that you have. So the question for our post today is, "How should you share it."

November 26, 2012

Have you ever seen an argument get somewhat bitter or personal in an online forum or via electronic communication? That is a little like asking, "have you ever visited an online forum or used electronic communication?" When we're safe behind keyboards, or to a lesser extent, on the telephone, arguments can escalate more than they would in person. For those who study communication, the theory has been that this heightened tendency toward becoming nastier and more aggressive is due to a subjective feeling of anonymity or invisibility when one is arguing without in-person communication. But based on a recent Israeli study, the cause may be something simpler than that: a lack of eye contact.

Look your audience in the eye: It is one of those staples of public speaking advice, and everyone should know it by now. But if you visit any courtroom and look at how many witnesses are not just glancing but maintaining eye contact with a jury or a judge, then you'll see that this advice is more popular than it is practiced. And if we take a step back in the process and look at the critical discussions that will determine whether a case settles early, late, or not at all, then that opportunity to literally see eye to eye is often displaced by emails, voice mail messages, or letters. The research suggests that we would be more likely to find a favorable and empathetic audience if we seize on in-person meetings whenever possible. This post will take a look at the new study, and discuss how its results should influence the way we talk about cases prior to trial, as well as the way we testify at trial.

November 22, 2012

One lasting lesson from the now-concluded presidential campaign is that it matters where you get your advice. The field of political consulting has long been populated by guru-like figures like Dick Morris. Relying on subjective indicators like the feeling and size of the crowds at rallies, as well as the intuition that the Obama campaign could never repeat the levels of turnout it saw in 2008, Morris predicted a "landslide" win for Mitt Romney. He was wrong, of course, and Nate Silver and many other pollsters were right. But beyond the polling, it turns out that team Obama had an unprecedented "Dream Team" of social scientists providing data-driven advice on messaging, fund-raising, and get-out-the-vote tactics. Detailed in a recent article in the New York Times, this Pro Bono team was known as "COBS" (for "Coalition of Behavioral Scientists) and included some of the leading lights from Princeton, Arizona State, Columbia, and the University of Chicago. All of these experts teamed up in order to provide the reelection team with research-based advice on countering rumors, portraying the adversary, strengthening voter commitments, and mobilizing the behavior of voters.

Ultimately, it turns out the social scientists were quite a bit more useful than the gurus, and this approach is likely to become the 'new normal' for political campaigns in the future. The trend points to a parallel choice for litigators: When looking for advice in the lead up to a jury trial, is it better to seek out gurus who seem to have a special sense and understanding for juries, or is it better to go with social scientists who are able to generate, analyze, and base recommendations on data derived from research prior to trial? Of course, the way I've framed that question, as well as my introductory example, reveals my bias. When you have a choice, I think it is better to listen to social scientists more than you listen to gurus. Still, there may be a little more nuance to the question. In this post, I take a look at the guru/scientist split as it relates to a choice of litigation consultant.

November 19, 2012

It is one thing to know an act has a chance of resulting in harm, and it's another to intend that harm to occur. Or is it? Consider the example of a company that is aware of a small risk of electric shock if repairs are done without powering off a piece of equipment. If the company sends an employee to make that repair anyway, would jurors say that company intended the injury to occur? It turns out, it depends on how you ask the question. A new study in the Journal of Empirical Legal Studies (Mueller, Solan & Darley, 2012) looked at exactly that scenario and found that, while research participants were generally able to see distinctions between varying degrees of liability (e.g., negligence versus willful disregard and intent), when asked to make a binary choice regarding intent, they tended to treat just about any level of knowledge as proof of intent. The tree of knowledge, in other words, bears the fruit of intent.

The challenge with any concept as subjective as "intent" is that jurors and judges end up with few, if any, foolproof cues, and instead they need to rely on their own projections. In the study, participants were asked to look at a scenario and assign consequences for the employer in deciding whether its acts were intentional or not. In that setting, the researchers found that participants' "'hot' moral judgments play a larger role than do their 'cold' cognitive categorizations." That means that the ability to understand a legal distinction won't always translate into a willingness to apply that distinction in practice. This post takes a look at this interesting new study on the ways jurors handle intent, and provides some practical advice for handling the distinctions in intent required by your case.

November 15, 2012

Justice may be blind, but hired experts can see pretty darned
well in our litigation system. No, a responsible expert won't lie
in order to support their client. But yes, a knowledge of who the
client is can't help but have at least a subtle influence on the
resulting testimony. But that is our adversarial system, right?
Both sides hire the best they can find who are willing to support
their theories, and the two sides fight it out, aided by
cross-examination and a skeptical and attentive jury. That is the
idea, but in practice, there are a few problems with that model.
For one, the adversarial model can end up elevating the value of
the less common expert opinion to the point that a view that,
maybe, only one in a hundred experts would sign on to becomes one
of only two expert opinions presented in court. For another, the
jurors themselves may be desensitized by the knowledge that all
parties are paying for their opinions and simply decide to set
aside the "hired guns" and figure things out on their own. Yet a
third problem is the effect that this model has on the experts
themselves: Academics who are used to following the facts
wherever they lead, without prejudgment or bias, are
uncomfortably thrust into an adversary system and find themselves
working not wholly for the truth, but in order to advance their
client's case.

Of course, all that shouldn't be taken as a statement that
experts as a class are dishonest. That isn't what I'm saying.
I've worked with many experts, and to a person they've been
honorable and careful women and men who understand that they
cannot mislead the jury and cannot risk being seen as just
another lawyer. But they also cannot take their eye off the
ultimate purpose of their testimony and the reason they were
hired. It is fair to wonder if there's another way. According to
one model, proposed in a 2010 article in the New York
University Law Review (Robertson, 2010) and recently tested in an
experiment published in a forthcoming edition of the Journal
of Empirical Legal Studies (Robertson & Yokum, 2012), there is a
simple solution that would improve both the accuracy and the
credibility of expert testimony: blind experts. No, I don't mean
hiring Stevie Wonder as your expert witness, I mean
employing a system that keeps the expert blind to the identity of
the client until the initial report is completed. The idea has
implications for how you might think about your experts now and
in the future, so this post will explore that idea.